- (1.) 1. This Revision Petition is directed against the order of the learned Subordinate Judge, Chittoor, granting permission to the respondent-plaintiff in O.S. No. 117 of 1971 to withdraw the said suit with liberty to file a fresh suit on the same cause of action. Two questions which are some what novel have been raised in this Revision Petition-(1) whether a plaintiff can be given leave to withdraw bis suit hit by section 67-A of the TRANSFER OF PROPERTY ACT, 1882 1882 with liberty to file a fresh suit and (2). Whether under Order 23 Rule 1(2) (b) CPC the court can permit a plaintiff to withdraw a suit without any written application in that behalf.
(2.) The broad facts of the case which are of common ground may shortly be stated: The plaintiff filed the suit for recovery of a sum of Rs. 6820/- being the amount due on two simple mortgage deeds dated 14-7-1959 and 1-8-1959 executed by defendants 1 to 4 and one late Munuswami in favour of the plaintiff. The plaintiff also filed another suit O.S. 314/71 on the file of the court of the District Munsif Chittoor in respect of the another mortgage executed by the same defen dants over the same property in favour of the plaintiff on 16-5-1959. There is yet another mortgage executed by the defendants relating to the same property in favour of the plaintiff on 31-5-1960 in respect of which the plaintiff has not filed any suit for recovery of the mortgage debt. The principal defence of the defendants in the suit was that the suit is hit by Section 67-A of the TRANSFER OF PROPERTY ACT, 1882 and is not maintainable as the plaintiff ought to have consolidated all the mortgages in his favour and filed one suit or none at all. The learned Subordinate Judge upheld the contention, but, however, permitted the plaintiff to withdraw the suit with the liberty to file a fresh suit consolidating all the mortgages although the plaintiff did not file any application for leave to withdraw the suit. Aggrieved by the aforesaid decision of the learned Subordinate Judge, defendants 1 and 2 have filed this revision petition. The first question that arises for decision is whether the plaintiff can be given leave to withdraw the suit bit by Section 67A of the TRANSFER OF PROPERTY ACT, 1882 with liberty to institute a fresh suit in respect of the subject matter of such suit. To answer this question, it is necessary to read section 67-A or the Transfer of Property which is in the following terms : A mortgagee who holds two or more mortgages executed by the same mortgagor in respect oi each of which he has a right to obtain the same kind of decree under Section 67, and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage-money has become due."
(3.) A plain reading of 1 bis section would show that the mortgagee who holds successive mortgages of the same property from the same mortgagor must enforce all or none at all unless there is a contract to the contrary. This section is primarily meant for the benefit of the mortgagor and the mortgagor may waive its benefit. Such a waiver could also be implied. It does not impose any penalty on the mortgagee who is bound to bring one suit on the several successive mortgages in respect of the game property for bis failure to do so. It only regulates the procedure te be followed by the mortgagee when he holds siveral successive mortgages of the same property from the same mortgagor. The Section itself does not expressly create any disability to bring a fresh suit as O.2 R.2 of the Code of Civil Procedure. A defect in the constitution of the suit contrary to Section 67-A of the TRANSFER OF PROPERTY ACT, 1882, is a mere defect of form and is not fatal to the merits of the claim. The section is not intended to defeat the claim of the mortgagee plaintiff merely on the ground that the mortgagee-plaintiff has failed to enforce all the mortgages at the same time In the circumstances, I hold that the court may permit the mortgagee-plaintiff to withdraw his suit hit by Section 67-A of the TRANSFER OF PROPERTY ACT, 1882 with liberty to file a fresh suit. This view of mine gains support from a decision of the Madbya Bharat High Court in Viswanath Vs. Haidarali, Therefore, there is no error of jurisdiction in the order of the learned Subordinate Judge in permitting the plaintiff-mortgagee to withdraw the suit with liberty to file a fresh suit.;